Traynor v. United Cigar-Whelan Stores Corp.

274 A.D. 800, 79 N.Y.S.2d 329, 1948 N.Y. App. Div. LEXIS 3408

Opinion

In an action by the infant plaintiff to recover damages for personal injuries, and by his father for medical expenses and loss of services, the complaint was dismissed on the opening statement of counsel. It was plaintiffs’ theory as set forth in their pleadings and stated on the opening, that a closed bottle of cigarette-lighter fluid, sold by defendant to the eleven-year-old infant plaintiff, was an inherently dangerous object; and that defendant was liable for the personal injuries sustained by the infant when he uncorked the bottle, applied a match thereto, and was burned by the ensuing flame. Judgment unanimously affirmed, with costs. We are of the opinion that, as a matter of law, the f igarette-lighter fluid was not a dangerous substance within the doctrine that one who puts a dangerous implement in the hands of a person incompetent to use it is chargeable with knowledge of the consequences. (Cf. Perry v. Rochester Lime Co., 219 N. Y. 60, 66.) The fluid was an article in common use, not inherently dangerous, and the occurrence was not of such a character that reasonable prudence and foresight would forecast its happening. Defendant’s act was not the proximate cause of the injuries, a cause of action was not stated, and the complaint was properly dismissed. Present — Lewis, P. J., Carswell, Adel, Sneed and Wenzel, JJ.